Moved the adoption of the report.

He said: Honourable senators, on June 13, 2022, the Standing Senate Committee on National Security and Defence completed its study of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

As part of this study, the committee heard from the Minister of Public Safety, the Office of the Privacy Commissioner of Canada, government officials, academic experts and representatives from legal and civil society organizations.

The committee adopted Bill S-7 with three broad areas of amendment, which included the following: first, the legal threshold for searching personal digital devices at the border; second, the network connectivity of those devices; and third, regulations relating to solicitor-client privilege. I will cover each of these briefly.

First on the legal standard, Bill S-7 would have introduced a new legal threshold for the examination of personal digital devices by Canada Border Services Agency, or the CBSA, customs officers and U.S. pre-clearance officers — that standard being “a reasonable general concern.”

As context for the changes proposed in the bill, in 2020 the Court of Appeal in Alberta ruled section 99(1)(a) of the Customs Act unconstitutional as it pertains to examinations of personal digital devices. CBSA customs officers currently use a multiplicity of indicators to guide searches of digital devices in line with their internal policies. The court determined that legislation must be amended to include a threshold and further stated that it is Parliament’s role to establish a threshold for the examination of personal digital devices by these officers.

In appearing before the committee, the minister asserted that the threshold proposed by the Government of Canada in Bill S-7 is required to give CBSA officers the authority they need to intercept illegal contraband on personal digital devices.

Furthermore, government officials explained that Bill S-7 would introduce the first legal threshold for U.S. pre-clearance officers to conduct a search of a personal digital device.

However, several witnesses expressed concerns about the bill’s proposed threshold. In their view, its implementation could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

The committee amended Bill S-7 to replace the new threshold of “reasonable general concern” with the higher threshold of “reasonable grounds to suspect,” which is a legal standard that already exists in the Customs Act and the Preclearance Act, 2016.

The committee agreed, on division, that this higher legal standard might alleviate some of the concerns that I have just listed. The Customs Act and the Preclearance Act, 2016 currently state that a CBSA or U.S. officer must have reasonable grounds to suspect that a traveller could be breaking the law before conducting other searches such as, in the case of the Customs Act, opening mail that a traveller is carrying, or, in the case of the Preclearance Act, 2016, conducting a strip search.

The committee’s amendments to Bill S-7 would ensure that examination of personal digital devices at the border would be subject to a threshold that is already known to CBSA and U.S. officers.

Regarding network connectivity, government officials emphasized that the Customs Act gives CBSA officers the right to examine documents that are stored on a personal digital device but not documents that are stored on a cloud-based server, for example. Bill S-7 would maintain this role for CBSA customs officers and would formally introduce this role for U.S. pre‑clearance officers. However, to enhance clarity, the committee amended Bill S-7 to state explicitly that these CBSA or U.S. officers would be required to disable network connectivity on personal digital devices that they are examining.

Finally, several of the committee’s witnesses raised concerns about solicitor-client privilege, suggesting that Bill S-7’s proposed legal threshold for the examination of personal digital devices — that being a “reasonable general concern” — could result in CBSA officers and U.S. pre-clearance officers having unauthorized access to documents protected by solicitor-client privilege. To address those concerns, the committee amended the bill so that both the Customs Act and the Preclearance Act, 2016, would allow the Governor-in-Council to make regulations respecting measures to be taken by such officers if a document on a personal digital device is subject to solicitor-client privilege or other related protections.

In conclusion, colleagues, throughout the study of Bill S-7, the committee was tasked with finding an appropriate balance between giving CBSA customs officers and U.S. pre-clearance officers the tools they need to, on one hand, ensure public safety and border integrity while, on the other hand, protecting the privacy rights of individuals.

On behalf of the committee, I present Bill S-7, as amended, for your consideration. Thank you.

Will the honourable senator take a question?

Yes.

Senator Dean, thank you very much for your work on the committee and for a very comprehensive report.

I may have my figure wrong, but besides the minister and officials, I think you had 12 independent witnesses. Would you agree with me that not one witness talked about the “reasonable general concern” test being a good idea, and that they all suggested that it should instead be “reasonable right to suspect?” Would you agree with me on that?

Thank you, Senator Jaffer. Arguably, with the exception of the child protective services, that would be the case, yes. All of the others were clearly in favour of a higher threshold.

Senator Dean, I will be speaking on this at some point, and I don’t want to belabour it, but even Ms. St. Germain said that she would accept the threshold because that was the general threshold the Customs Act used. Would you agree with that?

Senator Jaffer, I will check the record. It is my recollection, because it stood out to me, that this was the only witness who was supportive of the original bill as written. So I took from that that she was leaning toward “reasonable general concern.” But we’ll both check the transcripts, and we’ll know when you deliver your statement next week.

Thank you for your report, Senator Dean. I am very pleased to see the thorough job that the committee did.

I wonder if you could comment if there has been any further correspondence or communication from people within the Office of the Privacy Commissioner of Canada with respect to concerns they may have had or how those concerns may have been alleviated by encompassing and using the existing, known and tried-and-true legal standard threshold.

Thank you for the question, Senator Lankin. I believe we did receive submissions from the Privacy Commissioner, and they have been received previously with respect to this concern. The Office of the Privacy Commissioner was supportive of moving to a standard that was clearer and more definitive.

This might be more difficult for you to answer, and maybe it would be fair to wait until the sponsor of the bill speaks, but do we have any indication whether the government will view these amendments positively?

I will speculate here just by reading the room. With respect to clarifying and strengthening a requirement to ensure that a digital device is disconnected from the network, the officials told us that would be covered in some regulations and that it is, indeed, the current practice.

I didn’t hear concerns about that being toughened up through an amendment, I will say. Similarly, officials told us that they did have some pre-existing provisions in terms of solicitor-client privilege, but, again, I wasn’t hearing concerns about those being replicated for certainty. There clearly was a difference of views with respect to the legal threshold, though.

Senator Dean, thank you for the report you presented as the committee’s chair.

I want to be sure I understand the amendment passed in committee. The Alberta Court of Appeal decision stated that there is a test that needs to be met, but not necessarily the one that is currently in the act; it could be a slightly less stringent test for the Canada Border Services Agency, rather than the one currently set out in the act.

My understanding is that the amendment that was passed by the committee is to decide on the test, to expand the application of the current standard — which the agency is very familiar with and used to implementing — and, therefore, to expand the issue of searches of devices to cell phones and tablets. Is that correct?

Thank you for the question, Senator Dupuis. Yes, indeed, that is precisely the approach that committee members took — moving to what is a pre-existing standard for other purposes under the Customs Act and Preclearance Act, 2016, which is “reasonable grounds to suspect.” That is, as I understand it, the next higher level of threshold that would be available beyond this new concept of “reasonable general concern.” You are correct in your reading of it.

Honourable senators, I rise today to speak at report stage of Bill S-7.

Let me begin by thanking the committee for their collegial nature; Senator Dean for an organized clause-by-clause consideration, his first as chair; and Senator Wells as critic of the bill.

As indicated in the report, Bill S-7 was amended at committee in a number of areas to put into the legislation network disconnection before a personal digital device, or a PDD, search could occur. This was originally intended to be in regulation.

Other amendments concerned the protection of information, like solicitor-client privilege, through order-in-council-making authority. There was a proposed amendment to the bill to ensure that note taking would be found in the regulations, but the draft regulations provided to the committee proved those requirements were captured, which satisfied the committee, and the amendment was subsequently withdrawn.

As you would expect, the amendment I would like to address for the remainder of my time concerns the threshold of “reasonable grounds to suspect.”

Let me quote the mandate of the CBSA:

The agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation.

National security and public safety are at the heart of their mandate. In discussions with many of you, we talked about the balance of individual privacy rights on one hand and the protection of collective security rights on the other in the context of who and what crosses our borders.

Border officers are in an operationally unique position. They rely on an extremely brief interaction in order to make a determination of whether there has been a potential violation of any program legislation. Border security is a complex business. The CBSA enforces more than 90 acts, regulations and international agreements as part of the program legislation.

It is in this context that I remind you of Senator Dupuis’ pertinent question at second reading, and one that she followed up on earlier. Speaking of “reasonable general concern,” she said:

The problem is not that this is a new concept, because it was the Court of Appeal itself that introduced it. When the Court of Appeal states that the existing concept may be too strict for the situation we want to address, the legislator could favour a less-strict concept that creates fewer obligations for customs officers.

The fact that it is a new concept is therefore to be expected, but shouldn’t we focus instead on whether the concept chosen by the government in its bill is legally appropriate for the situation we want to address?

That is an important question. My views, as you know, were evident in my second reading speech.

The intention of the government, which we heard at committee, was to create a threshold that is reasonable; that requires objective and verifiable factual indications; that is general, and does not point to a specific contravention of the over 90 pieces of CBSA-enforced program legislation; and that includes a concern, which must be individualized and attributable to the specific person or their device.

The CBSA processed almost 19 million travellers in 2021 and conducted approximately 1,800 personal digital device examinations. In 2021, the CBSA was operating under internal policies determining when a device search could occur; Bill S-7’s intent was to take those internal policies and put them into law.

As stated at committee by Scott Millar, Vice President of Strategic Policy for the CBSA, “policy that exists now will be enshrined in legislation.” It was creating a legal threshold out of their policies. The lack of a threshold in law was ultimately why 99(1)(a) was found to be unconstitutional in R v. Canfield.

Canfield, at paragraph 109, states that:

The policies put in place by the CBSA go some way to recognizing the need for such safeguards, however policies are not “prescribed by law” as required by s. 1. . . .

There, the Canfield decision is referencing section 1 of the Charter of Rights and Freedoms.

Essentially, in order for something to be Charter compliant, it must be prescribed in law. Internal CBSA policies are not prescribed by law because, at the time, they were not found in law. The court did not reject internal CBSA policy as not meeting an adequate threshold; those internal policies were not even applicable in 2014 when the searches in Canfield took place because they were non-existent until 2015.

In drafting Bill S-7, the government believed that Canfield opened the door to a lesser threshold for personal digital device searches, and only for such searches.

At paragraph 75, the court states:

Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. . . .

This became the crux of the committee’s deliberations. This will be the first time that a law specifically in relation to personal digital devices will be in place at our borders. The uniqueness of the border for the purposes of section 8 privacy considerations has been settled in law for some time. The Supreme Court ruled on this in R. v. Simmons, and reaffirmed it in R. v. Jacques and R. v. Monney. On the topic of privacy rights at the border, paragraph 48 of Simmons says, “National self-protection becomes a compelling component in the calculus.”

Then, paragraph 49 states:

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. . . .

Monney builds on this statement, and says in paragraph 43 that:

. . . decisions of this Court —

— the Supreme Court of Canada —

— relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.

It is critical to find the appropriate balance and threshold for personal digital device examinations at our borders. The court in Canfield did what I believe was a masterful job in coming to their conclusion that a lesser threshold than reasonable suspicion may be necessary for device searches. The court balances the informational privacy concerns with the border context in paragraph 66:

The key question is to what extent an expectation of privacy is reasonable in the context of an international border crossing. In the domestic context it is well-recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices: see Morelli, Vu, Fearon. However, reasonable privacy expectations at an international border differ from reasonable expectations of privacy elsewhere. . . .

They continue in paragraph 67:

The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure . . . the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.

It was recognized by the court at paragraph 34 that we can’t sweep all personal digital device searches into one broad category for privacy considerations since different considerations are at play based on the information available to the border officer. The constitutional merit will eventually be determined by individual cases. But just because something is novel in law, as it was in the original draft, does not mean it’s unconstitutional. Each case has a different level of evidence determining whether a threshold is met. These are different depending on the goods being searched.

For example, the threshold issue of mail was often used as a comparator in committee, as it was in the chamber — and rightly so. The Customs Act provides that mail can be examined without any threshold; “reasonable grounds to suspect” is triggered when that mail is opened. Much information can be gleaned from an unopened piece of mail. It can be picked up and felt; perhaps it has an address, or a return address, and both can be searched; the envelope can be tested for drugs or organic matter; and, more importantly, it can be X-ray scanned to see if anything is inside.

All of this is possible without a threshold. This evidence is what develops the reasonable suspicion needed to open the mail. This allows a border officer to more readily point to a specific contravention necessary to meet a threshold of reasonable suspicion.

Senators, even bad things come in small, inconspicuous packages. In a piece published in the Calgary Herald, Benjamin Perrin, former lead criminal justice advisor to Prime Minister Harper, interviewed CBSA officials and was told that 1.9 million pieces of mail enter Canada from China monthly, and fentanyl has been found in packages as small as greeting cards.

For mail, there are many methods: It is more difficult for personal digital devices, hence the reliance on more generalized factors needed to search a device — that is, factors that don’t point to a particular contravention. This contributed to operational effectiveness.

At the same time, it was rightly argued that the amount of data on the device is so significant and so personal that the justification should be higher. But just because fentanyl is physical, does that somehow mean it’s also more harmful than what can be found on an electronic device? That’s the crux.

The minster told our committee that it’s not only child pornography that can be found on personal digital devices at our border entries, but also things like hate propaganda or evidence of drug importation, all of which are extremely harmful as well.

“Reasonable grounds to suspect” isn’t used only in the Customs Act for goods where evidentiary tools avail border officers to reach that legal bar. It is also the threshold for body searches, including strip searches. The court in Canfield states in paragraph 75 in relation to the Supreme Court ruling of Fearon:

We agree with the conclusion in Fearon at paras 54 and 55 that, while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement. As was noted in Simmons at para 28, “the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”. Given that, in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

The Supreme Court in Fearon and the Alberta Court of Appeal in Canfield agreed that searches of personal digital devices are “not akin to . . . a strip search,” yet this is where we find ourselves today.

Senators, there are different levels of searches available as we cross the border, depending on what the border officer is looking for. Luggage, purses, coats and briefcases don’t require a threshold. Strip searches are at the level of reasonable suspicion. This amendment equates a search of a person with that of a personal digital device. Border officers will have to suspect a specific contravention in more than 90 acts, regulations and international agreements to search a personal digital device if this bill as amended passes.

Alberta and Ontario have been operating using the higher threshold of reasonable suspicion at their points of entry since the beginning of May, after the expiration of the constitutional invalidity. Statistics on the effects of this change are preliminary and high-level, but they offer us a glimpse of what may come for border security and their operations. In a document tabled with the committee, it showed that May 2021 saw a traveller volume of 606,000 for Alberta and Ontario; May 2022 saw 2,595,000. This is a fourfold increase from the same time last year. Sixty‑three personal digital devices were examined in May 2021 in Alberta and Ontario; May 2022 saw only 18.

Senators, this is an examination rate of 1 in 10,000 last May, and 1 in 144,000 this May. This is a substantial change in searches, no matter how you cut it. Yes, we can look at the impact of COVID, travel patterns and staffing levels at our ports of entry, and I would hope that any incoming disaggregated data allows us to better understand the true impacts of this change in device searches. But the higher threshold for border operations is obviously going to have an operational impact.

A final note is that this bill also amends the Preclearance Act, 2016. This act is based on the agreement between Canada and the U.S. and will therefore require U.S. pre-clearance officers to be trained on the new threshold as well. It is important to note that border officers in the United Kingdom, Australia and the U.S. when they are on their own soil have no-threshold searches for personal digital devices.

I want to express my sincere thanks to all senators who put lots of thought and interest into this bill, including, of course, all those on the committee. Senators, the Canfield decision left it to Parliament to decide where the threshold for the search of personal digital devices should be. The committee has completed its work, and I look forward to third-reading speeches and the important continuing debate in the House of Commons. Thank you, meegwetch.

I rise today in support of the adoption of the report. I just wanted to point out that section 99 of the Customs Act, which we are currently discussing, is entitled “Examination of goods.” It states, and I quote:

99 (1) An officer may

(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited

(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification . . . examine the goods

(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined . . . examine the goods

(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods

(f) where the officer suspects on reasonable grounds that this Act or . . . any other Act of Parliament . . . have been or might be contravened in respect of any conveyance or any goods thereon

That means any act of Parliament administered or enforced by the officer.

To inspect a package, a bus, or to ensure that the right rate has been applied, the officer must have reasonable grounds to believe. I would be more convinced if the government changed these other sections of the legislation to say that, for all these other sections there has to be reasonable concern, but no. Regarding the computer, the thing most closely linked to your privacy, the one thing that contains all the data and can describe you more accurately than you can, we cannot decide that it warrants a lower threshold than all these elements that are necessary formalities to prevent a firearm from being imported to Canada.

We are told about pedophilia. It is important. It is serious, but we cannot allow computers to be searched under the guise of wanting to counter pedophilia by accepting a lower threshold than the threshold for allowing packages to be opened to verify whether there are firearms inside. The government is on the wrong track. If it wants to convince us that a lower threshold is possible — as suggested in Canfield by the Alberta Court of Appeal — then I invite the government to amend the other parts of the legislation to have the new proposed test apply everywhere. If there is no consistency in the legislation we cannot justify measures before a court. Thank you.

Senator, would you take a question?

With pleasure.

I have been listening to the debate, and, at the risk of sounding ignorant, can you tell me what happens when you have a racialized person coming through and their phone is looked at? There is a lower threshold. What happens? I, as a Muslim, will sometimes have a prayer on my phone in Arabic. What happens if the border agent doesn’t understand what that says? How does that impact a racialized person or, in this case, a Muslim?

Thank you, Senator Ataullahjan, for this question.

I’m not the expert on the issue, but there is one in this chamber. It’s Senator Jaffer. She made an important declaration at the committee study when she referred to exactly that type of experience and why she is always singled out in the line for a “random” check and sent to the second line. When she shows her green passport, they apologize and say, “Oh, sorry. It’s a mistake. We should not have called you for a second inspection.”

No doubt the system is not perfect. The current system is, according to some witnesses and the personal experience of Senator Jaffer, certainly deficient, because it seems to target some people more than others, especially after 9/11. Regarding the threshold that is being proposed, the evidence shown before the committee has illustrated that it is designed to codify the current practices of the customs officers.

Senator Dagenais asked an important question. He asked how many more employees they will need to teach these new criteria, because it’s a new test. Therefore, it will have to be explained carefully since it’s not a test that has been applied so far. It’s not the reasonable test that has been understood and developed by the courts. It will take time to flesh out.

How many more officers will you need? How many more training sessions? How many hours will you give to the officers to understand that new concept? The response from the border agency representative was, “No problem. We already have the training in place. We don’t need more people. That’s already what we do.”

What they are saying is that what they intend to do is to have this new threshold be equivalent to the current practice. But the current practice is in the guidelines; it’s not in the law. They say now that it’s in the law, it’s valid. I fear that, in practice, what is going to happen at customs won’t change with this new test. The old practices will continue under a new hat.

It’s important to me that we better define and flesh out the concept of reasonable suspicion or reasonable grounds to suspect rather than have a new test. This is the concept that has been recognized elsewhere in the act, so let’s be consistent. Either they change the whole act, or they change it only for computers, which is very unconvincing to me.

Senator Dalphond, reasonable suspicion— what does that mean? Would that be different for every agent? Who decides?

I was expecting to be brief, but I appreciate the questions. Regarding reasonable suspicion, the word “reasonable” has been defined by the courts as being objective. So it means the agent has enough indicia to reasonably suspect that something’s happening.

And it’s interesting because when the customs agency representative spoke to it, he suggested an example. He referred to someone who is coming back from a country where it’s well known that sex with children can occur. The person has been away for a long period. The person is having difficulty answering the questions, seems to be nervous and is sweating. He decides to send him to the second line.

Many of us felt there were reasonable grounds to do it. If this is the type of person they would like to target, the “reasonable suspicion” test will be the test to apply. I’m not so sure that it’s going to become ineffective.

We have reference to Ontario and Alberta saying that the numbers have been going down since the judgment of the Court of Appeal of Alberta. It was not renewed and, therefore, since April, they have applied “reasonable suspicion” for all travellers coming to Ontario or to Alberta. They say the numbers went down drastically. Well, yes, numbers went down drastically, but who says why? Is that because they are more careful? Maybe it’s a good thing. Is it because they don’t want to enforce it just to come up with the numbers, so they can say, “You see where we are? It’s a different test, and we don’t do as many checks as we used to do.”

All of that needs more explanation. I think we were a bit shortchanged when we asked questions about the rate of success and about the more limited numbers of people who are checked. What kinds of materials are found? What is illegal? We were not provided much information about that. I’m not saying there won’t be any kind of operational impact on the way they do things. For sure, if we have “reasonable suspicion,” it will change things compared to what they do now, because they intend to continue to do what they do now.

Senator Dalphond, one of the things that happens at airports, as we all know, is that we also have American pre-clearance officials. I think Senator Boehm asked this question almost every time: How are we going to educate American officials on this lower threshold?

What is your opinion? How is this going? Because they have a higher threshold. Now we must educate them to a lower threshold when their customs officials said their training is sufficient already.

I don’t want to steal Senator Boehm’s fire. He had very good questions at the committee about that. But our “reasonable suspicion” and “reasonable grounds to suspect” criteria are known in Canada as well as in the U.S. I suspect that if we have that criteria, the U.S. officers will know what they mean. For sure it’s a higher threshold than what they apply now because, in the U.S., there are no clear cases about that. There is confusion about the state of the law.

Obviously, there will be some training, but if you have training in connection with a concept which is foreign to their law, it will be more difficult than to train them to a concept which is known to their law.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

(Motion agreed to, on division, and report adopted.)

Honourable senators, when shall this bill, as amended, be read the third time?

(On motion of Senator Boniface, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)